<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(AMENDMENT NO. 18)
FRESH FOODS, INC., formerly known as WSMP, INC.
(Name of the Issuer)
Common Stock
(Title of Class of Securities)
929330 10 8
(CUSIP Number)
Patrick Daugherty
McGuire, Woods, Battle & Boothe LLP
Bank of America Corporate Center, Suite 2900
100 North Tryon Street
Charlotte, NC 28202
(704) 373-8975
(Name, address and Telephone Number of Persons
Authorized to Receive Notice and Communications)
December 22, 1999
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box: [ ]
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act.
The total number of shares reported herein is 2,821,754 shares, which
constitutes approximately 43.7% of the total number of shares outstanding. All
ownership percentages set forth herein are based upon 5,810,004 shares of Common
Stock issued and outstanding as of October 1, 1999. When calculating the number
of shares reported herein and the number of shares outstanding, 640,000 shares
issuable pursuant to currently exercisable options belonging to four of the
individual Reporting Persons (defined hereinafter) are accounted for by
aggregating the optioned shares with the shares that are beneficially owned by
the Reporting Persons and dividing the sum by the number of shares outstanding
plus the number of currently exercisable options belonging to the Reporting
Persons.
Page 1 of 9 Pages
<PAGE> 2
- --------------------- ------------------
CUSIP No. 929330 10 8 13D Page 2 of 9 Pages
- --------------------- ------------------
- ------- ------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JAMES CLAUDE RICHARDSON, JR. ###-##-####
- ------- ------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- ------- ------------------------------------------------------------------------
3 SEC USE ONLY
- ------- ------------------------------------------------------------------------
4 SOURCE OF FUNDS
SC, BK, PF
- ------- ------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
[ ]
- ------- ------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
- ------- ------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY 939,095 (1)
EACH REPORTING PERSON
WITH
- -------------------------- ----- -----------------------------------------------
8 SHARED VOTING POWER
1,274,034 (2)
- -------------------------- ----- -----------------------------------------------
9 SOLE DISPOSITIVE POWER
939,095 (1)
- -------------------------- ----- -----------------------------------------------
10 SHARED DISPOSITIVE POWER
1,274,034 (2)
- ------- ------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,213,129
- ------- ------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN SHARES
[ ]
- ------- ------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
36.7% (3)
- ------- ------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ------- ------------------------------------------------------------------------
<PAGE> 3
- --------------------- ------------------
CUSIP No. 929330 10 8 13D Page 3 of 9 Pages
- --------------------- ------------------
- ------- ------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
DAVID R. CLARK ###-##-####
- ------- ------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- ------- ------------------------------------------------------------------------
3 SEC USE ONLY
- ------- ------------------------------------------------------------------------
4 SOURCE OF FUNDS
SC, BK, PF
- ------- ------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
[ ]
- ------- ------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
- ------- ------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY 297,486 (4)
EACH REPORTING PERSON
WITH
- -------------------------- ----- -----------------------------------------------
8 SHARED VOTING POWER
1,274,034 (2)
- -------------------------- ----- -----------------------------------------------
9 SOLE DISPOSITIVE POWER
297,486 (4)
- -------------------------- ----- -----------------------------------------------
10 SHARED DISPOSITIVE POWER
1,274,034 (2)
- ------- ------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,571,520
- ------- ------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN SHARES
[ ]
- ------- ------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
25.7% (3)
- ------- ------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ------- ------------------------------------------------------------------------
<PAGE> 4
- --------------------- ------------------
CUSIP No. 929330 10 8 13D Page 4 of 9 Pages
- --------------------- ------------------
- ------- ------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JAMES M. TEMPLETON ###-##-####
- ------- ------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- ------- ------------------------------------------------------------------------
3 SEC USE ONLY
- ------- ------------------------------------------------------------------------
4 SOURCE OF FUNDS
SC, BK, PF
- ------- ------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
[ ]
- ------- ------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
- ------- ------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY 99,264 (5)
EACH REPORTING PERSON
WITH
- -------------------------- ----- -----------------------------------------------
8 SHARED VOTING POWER
1,257,235 (6)
- -------------------------- ----- -----------------------------------------------
9 SOLE DISPOSITIVE POWER
99,264 (5)
- -------------------------- ----- -----------------------------------------------
10 SHARED DISPOSITIVE POWER
1,257,235 (6)
- ------- ------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,356,499
- ------- ------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN SHARES
[ ]
- ------- ------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.0% (3)
- ------- ------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ------- ------------------------------------------------------------------------
<PAGE> 5
- --------------------- ------------------
CUSIP No. 929330 10 8 13D Page 5 of 9 Pages
- --------------------- ------------------
- ------- ------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
GREGORY ALBION EDGELL ###-##-####
- ------- ------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- ------- ------------------------------------------------------------------------
3 SEC USE ONLY
- ------- ------------------------------------------------------------------------
4 SOURCE OF FUNDS
SC, BK, PF
- ------- ------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
[ ]
- ------- ------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
- ------- ------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY 171,875 (7)
EACH REPORTING PERSON
WITH
- -------------------------- ----- -----------------------------------------------
8 SHARED VOTING POWER
1,227,235 (8)
- -------------------------- ----- -----------------------------------------------
9 SOLE DISPOSITIVE POWER
171,875 (7)
- -------------------------- ----- -----------------------------------------------
10 SHARED DISPOSITIVE POWER
1,227,235 (8)
- ------- ------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,399,110
- ------- ------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN SHARES
[ ]
- ------- ------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.9% (3)
- ------- ------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ------- ------------------------------------------------------------------------
<PAGE> 6
- --------------------- ------------------
CUSIP No. 929330 10 8 13D Page 6 of 9 Pages
- --------------------- ------------------
- ------- ------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
HERTH MANAGEMENT, INC. 56-1645597
- ------- ------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- ------- ------------------------------------------------------------------------
3 SEC USE ONLY
- ------- ------------------------------------------------------------------------
4 SOURCE OF FUNDS
SC, BK, PF
- ------- ------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
[ ]
- ------- ------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NORTH CAROLINA
- ------- ------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER (9)
BENEFICIALLY OWNED BY 1,227,235 (10)
EACH REPORTING PERSON
WITH
- -------------------------- ----- -----------------------------------------------
8 SHARED VOTING POWER
0
- -------------------------- ----- -----------------------------------------------
9 SOLE DISPOSITIVE POWER (9)
1,227,235 (10)
- -------------------------- ----- -----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -------------------------- ----- -----------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,227,235
- ------- ------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN SHARES
[ ]
- ------- ------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.1% (3)
- ------- ------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
C
- ------- ------------------------------------------------------------------------
<PAGE> 7
- --------------------- ------------------
CUSIP No. 929330 10 8 13D Page 7 of 9 Pages
- --------------------- ------------------
- ------- ------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
COLUMBIA HILL, LLC 56-2016827
- ------- ------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- ------- ------------------------------------------------------------------------
3 SEC USE ONLY
- ------- ------------------------------------------------------------------------
4 SOURCE OF FUNDS
SC, BK, PF
- ------- ------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
[ ]
- ------- ------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NORTH CAROLINA
- ------- ------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER (11)
BENEFICIALLY OWNED BY 46,799 (12)
EACH REPORTING PERSON
WITH
- -------------------------- ----- -----------------------------------------------
8 SHARED VOTING POWER
1,227,235 (8)
- -------------------------- ----- -----------------------------------------------
9 SOLE DISPOSITIVE POWER (11)
46,799 (12)
- -------------------------- ----- -----------------------------------------------
10 SHARED DISPOSITIVE POWER
1,227,235 (8)
- ------- ------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,274,034
- ------- ------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN SHARES
[ ]
- ------- ------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.9% (3)
- ------- ------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
C
- ------- ------------------------------------------------------------------------
<PAGE> 8
- --------------------- ------------------
CUSIP No. 929330 10 8 13D Page 8 of 9 Pages
- --------------------- ------------------
- ------- ------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
LARRY D. HEFNER ###-##-####
- ------- ------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- ------- ------------------------------------------------------------------------
3 SEC USE ONLY
- ------- ------------------------------------------------------------------------
4 SOURCE OF FUNDS
SC, BK, PF
- ------- ------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
[ ]
- ------- ------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
- ------- ------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY 10,000 (13)
EACH REPORTING PERSON
WITH
- -------------------------- ----- -----------------------------------------------
8 SHARED VOTING POWER
1,274,034 (2)
- -------------------------- ----- -----------------------------------------------
9 SOLE DISPOSITIVE POWER
10,000 (13)
- -------------------------- ----- -----------------------------------------------
10 SHARED DISPOSITIVE POWER
1,274,034 (2)
- ------- ------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,284,034
- ------- ------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN SHARES
[ ]
- ------- ------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.1% (3)
- ------- ------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ------- ------------------------------------------------------------------------
<PAGE> 9
-----------------
Page 9 of 9 Pages
-----------------
(1) Consists of (i) 724,095 shares owned of record (including 532 shares
owned through the Company's Employee Stock Purchase Plan as of March 6,
1999) and (ii) 215,000 shares subject to currently exercisable call
options.
(2) Consists of (i) 1,227,235 shares owned beneficially through HERTH
Management, Inc. and (ii) 46,799 shares owned beneficially through
Columbia Hill, LLC.
(3) Calculated by taking the aggregate amount beneficially owned by the
individual reporting person and dividing by the number of shares
outstanding (5,810,004) plus the number of presently exercisable call
options belonging to the individual reporting person.
(4) Consists of (i) 2,486 shares owned of record (including 1,236 shares
owned through the Company's Employee Stock Purchase Plan as of March
31, 1999) and (ii) 295,000 shares subject to currently exercisable call
options.
(5) Consists of (i) 9,264 shares owned of record (including 4,027 shares
owned through the Company's Employee Stock Purchase Plan as of March
31, 1999) and (ii) 90,000 shares subject to currently exercisable call
options.
(6) Consists of 1,227,235 shares owned beneficially through HERTH
Management, Inc. and 30,000 shares owned beneficially through Catawba
Valley Real Estate, Inc.
(7) Consists of (i) 131,250 shares owned of record, (ii) 625 shares owned
by spouse as custodian for minor children and (iii) 40,000 shares
subject to currently exercisable call options.
(8) Consists of 1,227,235 shares beneficially owned through HERTH
Management, Inc.
(9) Power is exercised by a majority vote of the shareholders of HERTH
Management, Inc.
(10) Consists of 1,227,235 shares owned of record and does not include other
shares beneficially owned by the shareholders of HERTH Management, Inc.
(11) Power is exercised by a majority vote of the members of Columbia Hill,
LLC.
(12) Consists of 46,799 shares owned of record and does not include other
shares beneficially owned by the members of Columbia Hill, LLC.
(13) Consists of 10,000 shares owned of record.
<PAGE> 10
ITEM 1. SECURITY AND ISSUER
Item 1 is amended and restated in its entirety as set forth below:
Pursuant to Rule 13d-2(a) under the Securities Exchange Act of 1934, as
amended (the "Act"), the undersigned hereby amend their Schedule 13D most
recently amended March 15, 1999, relating to the common stock, $1.00 par value
per share (the "Common Stock"), of Fresh Foods, Inc., formerly known as WSMP,
Inc. (the "Company"), and whose principal executive offices are located at 361
Second Street, NW, Hickory, NC 28601.
ITEM 2. IDENTITY AND BACKGROUND
Item 2(a) is not amended.
Item 2(b) is amended and restated in its entirety as set forth below:
(b) The business address of Columbia, HERTH and each of Messrs. Clark and
Richardson is 361 Second Street, NW, Hickory, NC 28601. The business address of
Mr. Edgell is 3200 Devine Street, Suite 103, Columbia, SC 29205. The business
address of Mr. Hefner is 1004 Power Street, China Grove, NC 28023. The business
address of Mr. Templeton is P.O. Box 1295, Claremont, NC 28610.
Item 2(c) is amended and restated in its entirety as set forth below:
(c) Each Reporting Person's present principal occupation or employment, and the
name, principal business and address of any corporation or other organization in
which such employment is conducted, is as follows:
<TABLE>
<CAPTION>
Present Principal Occupation or
Name Principal Business Address business
- ---------------------------------- ------------------------------------- ---------------------------------
<S> <C> <C>
James C. Richardson, Jr. Fresh Foods, Inc. Chairman of the Board of
361 Second Street, NW Directors of the Company
Hickory, NC 28601
David R. Clark Fresh Foods, Inc. Vice Chairman of the Board of
361 Second Street, NW Directors of the Company
Hickory, NC 28601
Columbia Hill, LLC, a North 361 Second Street, NW Private investment firm
Carolina limited liability Hickory, NC 28601 engaging in the purchase and
company sale of securities
HERTH Management, Inc., a North 361 Second Street, NW Provision of business
Carolina corporation Hickory, NC 28601 management and consulting
services and private
investment firm engaging in
the purchase and sale of
securities
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
Present Principal Occupation or
Name Principal Business Address business
- ---------------------------------- ------------------------------------- ---------------------------------
<S> <C> <C>
Gregory A. Edgell Accounting Resources, Inc. Financial consulting
3200 Devine Street, Suite 103
Columbia, SC 29205
Larry D. Hefner Program Sales & Marketing, LLC Co-owner of Program Sales &
1004 Power Street Marketing, LLC, a food product
China Grove, NC 28023 brokerage
James M. Templeton S&D Land Company, LLC Co-owner of S&D Land Company,
P.O. Box 1295 LLC, a real estate investment
Claremont, NC 28610 company
</TABLE>
Items 2(d) through 2(f) are not amended.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 is hereby amended by restating the first three paragraphs of such Item as
presented in Amendment 17:
Over the course of eleven years, the Reporting Persons have used
various sources of funds for the acquisition of Common Stock including personal
funds of the Reporting Persons, loans from the Reporting Persons and affiliated
corporations of the Reporting Persons, and loans from banks to some or all of
the Reporting Persons.
Presently the Reporting Persons have outstanding approximately $10.0
million in loans to acquire or refinance the acquisition of the Common Stock
and for which portions of the Common Stock are pledged as security.
These loans are between some or all of the Reporting Persons, their
affiliated corporations and several regional banks, including First Century Bank
of Wytheville, Virginia, Carolina First Bank of Greenville, South Carolina,
First Union National Bank of Hickory, North Carolina, Bank of Granite of
Hickory, North Carolina and Peoples Bank of Newton, North Carolina. Maturities
range from three to five years, and interest rates range from LIBOR plus 2.75%
to prime plus 1.00%.
Item 3 is further amended to add the following paragraph to the end of Item 3:
As of December 22, 1999, Mr. Richardson entered into a Stock Purchase
Agreement with Charles F. Connor, Jr. providing for the purchase of 716,063
shares of Common Stock by Mr. Richardson at a price of $8.25 per share. The
Stock Purchase
<PAGE> 12
Agreement provides for the payment of $2,500,000 in cash by the closing and the
delivery by Mr. Richardson at the closing of a three-year promissory note
bearing interest at 8% per annum for the remaining $3,407,519.75.
Mr. Richardson intends to borrow from the Company all or substantially
all of the $2,500,000 cash portion of the purchase price of the shares. The
Board of Directors of the Company (and its Sensitive Transactions Committee)
have authorized the Company to loan the cash portion of the purchase price to
Mr. Richardson, subject to lender approval and bondholder consent to the extent
necessary or advisable. The Company's loan to Mr. Richardson is to bear interest
at 8.5% per annum. All principal and interest are to be due and payable upon the
three-year maturity of the loan.
ITEM 4. PURPOSE OF THE TRANSACTION
Item 4 is amended and restated in its entirety as set forth below:
The Reporting Persons acquired and hold the shares of Common Stock for
investment purposes. The Reporting Persons generally believe that the Common
Stock is significantly undervalued in the over-the-counter market. The Reporting
Persons continuously analyze the operations, capital structure and markets of
companies in which they invest, including the Company, through analysis of
documentation and discussions with knowledgeable industry and market observers
and with representatives of such companies.
Each Reporting Person continuously assesses the Company's business,
financial condition, results of operations and prospects, general economic
conditions, the securities market in general and those for the Company's
securities in particular, other developments and other investment opportunities.
Depending on such assessments, one or more of the Reporting Persons may acquire
additional shares of Common Stock or may sell or otherwise dispose of all or
some if its holdings of shares of Common Stock. Such actions will depend upon a
variety of factors, including, without limitation, current and anticipated
future trading prices for the Common Stock, the financial condition, results of
operations and prospects of the Company, alternate investment opportunities and
general economic, financial market and industry conditions.
<PAGE> 13
Except as disclosed above, the Reporting Persons presently have no
plans or proposals that relate to, or could result in, any of the actions
referred to in paragraphs (a) through (j), inclusive, of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 of Schedule 13D is amended and restated in its entirety as set forth
below:
(a) As of the close of business on December 22, 1999, the Reporting
Persons, as a group, beneficially owned, as that term is defined in Rule 13d-3
under the Act, 2,821,754 shares of Common Stock, constituting 43.7% of the
outstanding shares. This amount includes the shares Mr. Richardson has
contracted to purchase from Mr. Connor. See Item 6. The total number of shares
of Common Stock outstanding was 5,810,004 (not including 640,000 shares issuable
pursuant to currently exercisable options belonging to five of the individual
Reporting Persons which are used in the calculation of the percentage of
beneficial ownership) as of October 1, 1999, as reflected in the Company's
quarterly report on Form 10-Q filed with the Securities and Exchange Commission
for the fiscal quarter ended September 4, 1999.
As of the close of business on December 22, 1999, the Reporting Persons
beneficially owned, as that term is defined in Rule 13d-3 under the Act, the
following shares of Common Stock:
Number of Shares Percentage of
Name of Reporting Person Held Outstanding Shares (1)
- ------------------------------- ---------------- ----------------------
James C. Richardson, Jr. 2,213,129 36.7%
David R. Clark 1,571,520 25.7
James M. Templeton 1,356,499 23.0
Gregory A. Edgell 1,399,110 23.9
HERTH Management, Inc. 1,227,235 21.1
Columbia Hill, LLC 1,274,034 21.9
Larry D. Hefner 1,284,034 22.1
(1) Calculated by taking the aggregate amount beneficially owned by the
Reporting Person and dividing by the sum of the number of shares
outstanding (5,810,004) plus the number of presently exercisable call
options belonging to the Reporting Person.
Of the shares beneficially owned by the Reporting Persons, the
following shares of Common Stock are held pursuant to currently exercisable
options under the Company's 1997 Special Stock Option Plan, 1997 Incentive Stock
Option Plan and 1987 Special Stock Option Plan:
<PAGE> 14
Currently Options Not
Name of Reporting Person Exercisable Options Currently Exercisable
- ------------------------------ ------------------- ---------------------
David R. Clark 295,000 20,000
James C. Richardson, Jr. 215,000 --
James M. Templeton 90,000 --
Gregory A. Edgell 40,000 --
Larry D. Hefner -- --
(b) The ownership of each non-individual Reporting Person is as
follows:
Percent
Reporting Person Ownership Shares of Stock
---------------- --------- ---------------
HERTH 1,227,235
Columbia 45% 552,256
Richardson 22 269,992
Edgell 22 269,992
Templeton 11 134,996
--------- ---------------
100% 1,227,235
COLUMBIA 46,799
Clark 45% 21,060
Richardson 40 18,720
Hefner 15 7,020
--------- ---------------
100% 46,799
The direct and indirect Common Stock ownership of each Reporting
Person, and the power to vote and dispose of the Common Stock, is as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Shares Held Shares Held
Shares Held Indirectly through Indirectly through Total Shares
Name Directly (1) HERTH (4) Columbia (5)
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
HERTH 1,227,235 -- -- 1,227,235
- -------------------------------------------------------------------------------------------
Columbia 46,799 552,256 -- 599,055
- -------------------------------------------------------------------------------------------
Richardson 724,095 269,992 239,622
215,000 (2) 1,448,709
- -------------------------------------------------------------------------------------------
Clark 2,486 -- 269,575
295,000 (2) 567,061
- -------------------------------------------------------------------------------------------
Templeton 9,264 134,996 --
90,000 (2) 264,260 (6)
- -------------------------------------------------------------------------------------------
Hefner 10,000 -- 89,858 99,858
- -------------------------------------------------------------------------------------------
Edgell 131,250 269,992 --
625 (3)
40,000 (2) 441,867
- -------------------------------------------------------------------------------------------
Total 2,791,754 1,227,236 599,055
- -------------------------------------------------------------------------------------------
</TABLE>
(1) Each Reporting Person has the sole power to vote and dispose
of the shares, unless otherwise indicated.
<PAGE> 15
(2) Represents shares that the Reporting Person has the option to
acquire pursuant to currently exercisable stock options
granted pursuant to the Company's 1997 Special Stock Option
Plan, 1997 Incentive Stock Option Plan and 1987 Special Stock
Option Plan.
(3) Shares held by spouse as custodian for minor children.
(4) Voting or disposition of HERTH's shares may be done only by
the consent of the holders of a majority of its outstanding
shares. Beneficial ownership of other than a pro-rata interest
in the shares has been disclaimed by each of the shareholders
of HERTH.
(5) Voting or disposition of Columbia's shares may be done only by
the consent of the holders of a majority of its membership
interest. Beneficial ownership of other than a pro-rata
interest in the shares has been disclaimed by each of the
members of Columbia.
(6) Mr. Templeton and his family may be deemed the beneficial
owners of 30,000 shares through their two-thirds ownership of
Catawba Valley Real Estate, Inc., which owns 30,000 shares of
the Company.
(c) See Item 6 as it relates to the Stock Purchase Agreement between
Mr. Richardson and Charles F. Connor, Jr.
On August 12, 1999, the Board of Directors of the Company
authorized the acceleration of vesting of 20,000 options belonging to
Mr. Templeton in recognition of his service to the Company.
On January 7, 1999, the Board of Directors of the Company
authorized the acceleration of vesting of options belonging to Mr.
Hefner in recognition of his service to the Company. The 40,000 vested
options held by Mr. Hefner expired on November 6, 1999.
(d) No person, other than the Reporting Persons, is known to have the
right to receive or the power to direct the receipt of dividends or
proceeds from the sale of the shares of Common Stock held by the
Reporting Persons.
(e) Not applicable.
Pursuant to Rule 13d-4 of the Exchange Act Rules, the Reporting Persons
expressly declare that the filing of this statement shall not be construed as an
admission that the Reporting Persons are, for the purposes of Section 13(d) of
the Act, the beneficial owner of any securities covered by this statement.
<PAGE> 16
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
Item 6 is amended to add the following at the end of Item 6:
On December 22, 1999, Mr. Richardson entered into a Stock Purchase
Agreement with Mr. Charles F. Connor, Jr. whereby he agreed to purchase all
shares of Common Stock beneficially owned by Mr. Connor at a price of $8.25 per
share on or before January 31, 2000. The Stock Purchase Agreement also covers
shares held by Mr. Connor's wife and adult children as to which Mr. Connor
disclaims beneficial ownership. Under the Stock Purchase Agreement, $100,000 of
the purchase price was payable in escrow upon execution of the agreement,
$2,400,000 of the purchase price is payable at closing, and the balance is
payable under a note due no later than three years after the closing with a
portion of the purchased shares being held in escrow pending payment of the
note. A copy of the Stock Purchase Agreement is filed as Exhibit 99.3 to this
Amendment 18 to Schedule 13D and is incorporated herein by this reference
thereto.
In connection with the acquisition of all of Mr. Connor's investment in
the Company, the Company has agreed to enter into a consulting and
non-competition agreement with Mr. Connor, providing for payments to Mr. Connor
of $200,000 per year and family medical insurance coverage for five years. It is
also expected that County-Wide Insurance Agency, Inc., an insurance agency of
which Mr. Connor is the principal owner, will continue to provide insurance
coverage for the Company.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 is amended to add the following exhibit:
Exhibit 99-3. Stock Purchase Agreement between Charles F. Connor, Jr.
and James C. Richardson, Jr. entered into as of December 22, 1999.
<PAGE> 17
SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, each of the undersigned certifies that the information set forth in
this statement is true, complete and correct.
/s/ James C. Richardson, Jr. January 4, 2000
- --------------------------------------------
James C. Richardson, Jr.
/s/ David R. Clark January 4, 2000
- --------------------------------------------
David R. Clark
/s/ Gregory A. Edgell January 4, 2000
- --------------------------------------------
Gregory A. Edgell
/s/ James M. Templeton January 4, 2000
- --------------------------------------------
James M. Templeton
/s/ Larry D. Hefner January 4, 2000
- --------------------------------------------
Larry D. Hefner
COLUMBIA HILL, LLC
By: /s/ David R. Clark January 4, 2000
---------------------------------------
David R. Clark, Member
HERTH MANAGEMENT, INC.
By: /s/ James M. Templeton January 4, 2000
---------------------------------------
James M. Templeton, Vice President
<PAGE> 1
Exhibit 99.3
STATE OF NORTH CAROLINA
CATAWBA COUNTY
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made and entered into as
of the 22 day of December, 1999, by and between Charles F. Connor, Jr., a
citizen and resident of Catawba County, North Carolina (hereinafter "Seller");
and James C. Richardson, Jr., a citizen and resident of Catawba County, North
Carolina (hereinafter "Buyer").
RECITALS
A. Seller is the owner of 716,063 shares of common stock (the "Stock")
of Fresh Foods, Inc., (hereinafter the "Corporation"), a corporation organized
and existing under the laws of the State of North Carolina, having its principal
place of business in Catawba County, North Carolina, and said stock is traded
over National Association of Security Dealers Automated Quotation System
(NASDAQ) having the symbol "FOOD".
B. Seller desires to sell all of his stock in the Corporation to Buyer,
and Buyer desires to purchase all of Seller's stock in the Corporation pursuant
to the terms and provisions hereof.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
SALE OF STOCK
Seller hereby sells, assigns, transfers and sets over to Buyer 716,063
shares of common stock owned by the Seller in the Corporation. Buyer hereby
agrees to purchase the Stock and agrees to pay in consideration thereof the
purchase price of Eight and 25/100 Dollars ($8.25) per share, for a total of
$5,907,519.75 (the "Purchase Price"), to be payable as follows:
1.1 Earnest Money Deposit. Upon execution hereof, Buyer shall
deliver the sum of One Hundred Thousand Dollars ($100,000.00)
to Charles R. Young, Sr., as Trustee, to be held by Charles R.
Young, Sr., as Trustee, until the Closing (as defined below)
of the transaction contemplated hereby (the "Earnest Money
Deposit"). The Earnest Money Deposit shall be credited toward
the Purchase Price at the Closing.
1.2 Cash Payment at Closing. Buyer shall deliver the sum of Two
Million Four Hundred Thousand Dollars ($2,400,000.00) to
Seller at the Closing of the subject transaction.
1
<PAGE> 2
1.3 Payment of Balance of Purchase Price after Closing. At the
Closing, Buyer shall deliver a Promissory Note to the Seller
in the principal amount of the remaining balance of the
Purchase Price. Said Promissory Note shall bear interest at
the rate of eight (8%) percent per annum. The Buyer shall pay
interest payments only on an annual basis on the twelfth
(12th) month and the twenty-fourth (24th) month following the
Closing. The entire outstanding principal balance and any
interest accrued thereon shall be due and payable no later
than three (3) years from the date of the Closing. There shall
be no prepayment penalty for early payment of all or any part
of the amount due.
ARTICLE II
DELIVERY OF STOCK IN ESCROW
2.1 Stock Certificates to Escrow Agent. At the Closing, Seller shall
deliver to Charles R. Young, Sr., whose address is 400 Second Avenue NW,
Hickory, North Carolina 28601, as "Escrow Agent", free and clear of all
encumbrances and restrictions on transfer, all certificates for the shares of
Stock sold pursuant to this Agreement, duly endorsed for transfer to Buyer and
accompanied by all other documents necessary for an effective transfer.
2.2 Shares Transferred Directly to Buyer at Closing. At the Closing,
the number of shares of the Stock represented by the sum of Two Million Five
Hundred Thousand Dollars ($2,500,000.00) at the price of Eight and 25/100
Dollars ($8.25) per share shall be conveyed to the Buyer.
2.3 Balance of Shares Delivered upon Payment of Promissory Note. Upon
the payment of the balance of the Purchase Price under the terms of the subject
Promissory Note in the principal sum of $3,407,519.75, on or before the due date
as provided for in the said Promissory Note, the Escrow Agent shall deliver the
remaining balance of shares of Stock being sold hereunder, together with the
necessary stock transfer stamps duly affixed thereon, and all other documents
delivered to the Escrow Agent to effectively transfer such shares, to the Buyer.
2.4 Escrow Fees. The fees and all other expenses of the Escrow Agent
shall be paid by Buyer.
2.5 Escrow Agreement. At the Closing, the Seller, Buyer and Escrow
Agent shall enter into a formal Escrow Agreement containing standards terms and
provisions governing the duties and responsibilities of the Escrow Agent.
ARTICLE III
CLOSING
The Closing of the transactions contemplated hereby shall occur on or
before January 31, 2000 (the "Closing") at 10:00 AM at the law offices of Tate,
Young, Morphis, Bach & Taylor, LLP, 400 Second Avenue NW, Hickory, North
Carolina, or at such other time and place as the parties may mutually agree
upon.
2
<PAGE> 3
ARTICLE IV
VOTING RIGHTS DURING ESCROW
As long as the Buyer is not in default in the payment of the balance of
the Purchase Price pursuant to the subject Promissory Note, the Buyer shall have
the right to vote the Stock delivered to Buyer at Closing and on deposit with
the Escrow Agent. In connection therewith, Seller shall at Closing execute and
deliver an effective, irrevocable proxy or proxies in favor of Buyer or Buyer's
nominee or nominees, and Buyer shall have the right, in Buyer's sole discretion,
to designate one or more nominees to vote the proxy or proxies pursuant to the
terms of this Agreement.
ARTICLE V
DIVIDENDS DURING ESCROW
Any and all dividends paid on the Stock held by the Escrow Agent during
the term of the subject Promissory Note shall be the property of the Buyer.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants as follows:
(a) Seller is the owner of, free and clear of any liens,
encumbrances and charges, and has full power to sell and
transfer to Buyer the Stock.
(b) The sale of the Stock by Seller pursuant to this Agreement is
an isolated transaction by the Seller, who does not intend to
make any other sales and who has not made any sales or
purchases of such stock within the past __________ months.
ARTICLE VII
DELIVERIES BY SELLER AT CLOSING
At the Closing, Seller shall deliver the following documents and
instruments:
(a) All stock certificates representing 716,063 shares of common
stock owned by Seller in the Corporation. Said certificates
shall be endorsed for transfer to Buyer, thereby transferring
the subject shares free and clear of any and all liens and
encumbrances;
(b) An Escrow Agreement containing standard terms and provisions
governing the duties and responsibilities of the Escrow Agent
and the parties with respect to that portion of the Stock
being held by the Escrow Agent; and
(c) Such other documents as may be reasonably necessary in the
opinion of Buyer to effectuate the transactions contemplated
by this Agreement.
3
<PAGE> 4
ARTICLE VIII
DELIVERIES BY BUYER AT CLOSING
At the Closing, Buyer shall deliver the following:
(a) The sum of Two Million Four Hundred Thousand Dollars
($2,400,000.00) in cash or certified funds as part of the
Purchase Price payable to the Seller;
(b) The Promissory Note in favor of Seller containing the terms
and provisions set forth in Section 1.3 hereof and the
standard and customary terms of such a Promissory Note.
(c) An escrow agreement containing standard terms and provisions
governing the duties and responsibilities of the Escrow Agent
and the parties with respect to that portion of the Stock
being held by the Escrow Agent; and
(d) Such other documents as may be reasonably necessary in the
opinion of Seller to effectuate the transactions contemplated
by this Agreement.
ARTICLE IX
FILINGS AND REGISTRATION
Buyer agrees to perform and to pay for the costs and expenses required
in connection with any filings and registration with the Securities and Exchange
Commission, the Corporation, and any and all other entities or agencies required
in order to close this transaction.
ARTICLE X
BROKERAGE
Buyer and Seller represent that there are no brokerage or other
commissions due relative to the sale and transfer of the Stock by Seller to
Buyer.
ARTICLE XI
ENTIRE AGREEMENT
This Agreement sets forth and contains the entire agreement between the
Buyer and Seller with respect to the subject stock, and will not be modified or
terminated except by agreement in writing executed by both parties.
ARTICLE XII
GOVERNING LAW
This Agreement shall be construed in accordance with and governed by
the laws of the State of North Carolina.
4
<PAGE> 5
IN WITNESS WHEREOF, the parties hereby have executed this Stock
Purchase Agreement by affixing their hands and seals hereto on the date first
above written.
SELLER:
/s/ Charles F. Connor, Jr. (SEAL)
-----------------------------------
Charles F. Connor, Jr.
BUYER:
/s/ James C. Richardson, Jr. (SEAL)
-----------------------------------
James C. Richardson, Jr.
5
